92 Decision Citation: BVA 92-27729
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-18 042 ) DATE
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THE ISSUE
Entitlement to recognition of the veteran's daughter,
[redacted] , as a "child" based upon having permanent incapacity
for self-support prior to age 18.
REPRESENTATION
Appellant represented by: Department of Veterans Affairs,
California
ATTORNEY FOR THE BOARD
Hilary L. Goodman, Counsel
INTRODUCTION
The veteran, who had active service from March 1960 to
October 1961, died in March 1974. This matter comes before
the Board of Veterans' Appeals (hereinafter the Board) on
appeal from a decision in June 1989 by the Los Angeles,
California, Regional Office holding that the veteran's
daughter, [redacted] , was not permanently incapable of
self-support prior to her 18th birthday. The notice of
disagreement was received from [redacted] 's mother, the
appellant, in May 1990. The statement of the case was
issued in September 1990. The substantive appeal was
received in November 1990. A supplemental statement of the
case was issued in December 1990. The appeal was initially
docketed at the Board in April 1991. Following review, in
July 1991, the Board remanded the claim for further
development. Another supplemental statement of the case was
issued in December 1991. The appeal was again docketed at
the Board in October 1992. The appellant is being
represented in this matter by the California Department of
Veterans Affairs.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that [redacted] , after refusing her
medication, in 1985 and 1986, had psychotic episodes and was
dropped from regular high school. It is asserted that,
after dropping out of continuation school at age 17, she was
referred to a program for high school dropouts at a junior
college and was placed in a program for students with
learning disabilities to improve her basic educational
skills. The appellant further asserts that, while her
daughter has worked on her basic skills, she has not been
able to get her General Equivalency Diploma (GED) because
she has difficulty with concentration, memory and
comprehension, lacks energy and is completely dysfunctional
without support and assistance. She has a low stress
tolerance and has difficulty functioning on a social level
or in a work environment. It is finally contended that a
Department of Veterans Affairs (VA) psychiatrist would give
her a 100 percent rating as she functions at a much lower
level than the veteran, who was rated 100 percent disabled
for chronic paranoid schizophrenia.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record, and for the following
reasons and bases, it is the decision of the Board that the
preponderance of the evidence is against the claim for
recognition of the veteran's daughter, [redacted] , as a "child"
based upon having permanent incapacity for self-support
prior to age 18.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been requested by
the originating agency.
2. The appellant's daughter, [redacted] , who was born in
[redacted] , has received treatment for schizophrenia
since at least 1985.
3. She did not become permanently incapable of obtaining
and maintaining substantially gainful employment before
reaching age 18.
CONCLUSION OF LAW
The criteria for recognition of the veteran's daughter,
[redacted] , as a "child" of the veteran based on permanent
incapacity for self-support before her 18th birthday have
not been met. 38 U.S.C.A. §§ 101(4), 5107 (West 1991);
38 C.F.R. §§ 3.57, 3.356 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The question for consideration is whether the appellant's
daughter, [redacted] , may be recognized as a "child" of the
veteran on the basis of permanent incapacity for
self-support prior to age 18. We note that we have found
that the appellant's claim is "well grounded" within the
meaning of 38 U.S.C.A. § 5107(a). That is, we find that she
has presented a claim which is plausible. Prior to
addressing the merits of the appellant's appeal, the Board
must determine whether the case has been adequately
developed, a determination which must be made by reason of
the statutory obligation on the part of VA to assist the
appellant in developing facts pertinent to her claim. The
record shows that, following the Board's remand of the case
in July 1991 to obtain more recent information, academic
information was obtained. Although the appellant was timely
notified of her daughter's scheduled VA examinations, she
failed to report. In addition, the representative has
indicated that he attempted to contact the appellant and her
child to determine the cause of failure to report for the VA
examination but that, as of October 1992, no response had
been received. While all of the requested information was
not secured, this is a result of the appellant's failure to
cooperate, not by reason of a lack of diligence on the part
of the VA. The Board concludes that the duty of the VA to
assist the appellant has been satisfied.
The phrase permanent incapacity for self-support
contemplates disabilities which are totally incapacitating
to the extent that the person would be permanently incapable
of self-support through his or her own efforts by reason of
physical or mental defects. To establish entitlement to the
benefit sought, various factors under 38 C.F.R. § 3.356 are
for consideration. Essentially, rating criteria applicable
to disabled veterans are not controlling. Employment which
is only casual or intermittent will not rebut permanent
incapacity of self-support otherwise established, but lack
of employment of the child either prior to or after age 18,
should not be considered a major factor in the determination
unless actually due to physical or mental defect.
[redacted] was born in [redacted] . It would appear that her
medical difficulties began at an early age. In a May 1977
psychodiagnostic consultation report, it was noted that her
background was filled with a great deal of instability and
chaos. She had difficulty adjusting to regular school. It
was noted that testing revealed average intellectual
capacity with some indications of perceptual difficulties
raising the possibility of a learning disability. The
examiner indicated that he saw no signs of cognitive
dysfunction.
The director of the [redacted] Program at [redacted]
[redacted] College, in a January 1988 report, indicated that
the appellant's daughter had a pervasive learning disability
in most learning processes which was developmental in
nature, was incurred primarily through maturational delay
and was perpetuated by impaired cognitive processes. It was
noted that average academic potential was evident, there was
no evidence existing which would indicate that the learning
disability was progressional and it was noted that the
learning disability might be characterized as moderate with
respect to the degree of functional limitation. In the
opinion of the director [redacted] had extensive or multiple
disabilities which precluded achievement of full academic,
vocational, or social potential without the use of
substantially higher costing special classes, programs or
support services. The director, in an October 1990 report,
indicated that in an adaptive behavior assessment the
appellant's daughter scored at a fair level with moderate
impairment in either social relations or occupational
functioning or some impairment in both. It was noted that
she had been in the program in 1988 and 1989 and that, at
her exit from the courses, she had not demonstrated
measurable progress in classes and towards achieving her GED.
An individual with the [redacted] College Counseling Center,
after noting that [redacted] worked strictly on basic skill
improvement, indicated in a report received in November 1990
that her learning disabilities prevented her from
transitioning into regular college classes. An associate
professor of dance at [redacted] College related in November
1990 that at times he could not get her attention and noted
that she would have failed the class except for the fact
that she was always there and worked very hard. He noted
that she studied hard for her final examination and that she
had a "pretty good" understanding of the final examination
material.
[redacted] , M.D., in a February 1989 statement, related
that he had seen [redacted] sporadically since 1985, first
seeing her for a psychotic episode of acute onset during
which she was delusional and hearing voices. This quickly
cleared with medication and he saw her for supportive
psychotherapy and monitoring of medications. While her
previous history included problems as a child in both areas
of learning disabilities and psychological behavior. On her
last visit she was in good spirits and not in a psychotic
state but with a very unrealistic view of the world and
unrealistic goals. The diagnostic impression was
schizophrenia, paranoid type, chronic. The prognosis was
guarded to poor with the need for continued supportive
psychotherapy and medications probably much of her life.
[redacted] 's brother and sister, in statements dated in November
1990, indicated that she had problems with comprehension,
that socially she was not engaging and that she slept
12 hours a day plus naps. Statements from two long-time
acquaintances, received in November 1990, were to the
combined effect that [redacted] had difficulty relating to
others in social situations and seemed to need to have
constant guidance and supervision.
Although the above records would suggest that [redacted] might
have some difficulty with respect to procuring substantially
gainful employment, administrative and academic records from
1989 to 1991 from College [redacted] reflect that she
made steady progress and demonstrated an attitude of high
motivation. It was reported that her course work tended to
center around remedial courses in which she worked very hard
and demonstrated significant progress. It was noted that it
had taken a great deal of time and energy to complete
regular academic classes and that a regular academic program
with a degree as her goal would take many years. Her
strengths were listed as her verbal skills and her attitudes
toward learning. Her weaknesses were in comprehension,
short-term memory and visual perceptual speed.
Although the courses taken by [redacted] were remedial, and it
was noted that an intensive effort was put forth by both her
and the staff in order to reach her current level of
achievement, however limited, this is not equivalent to
permanent incapacity for self-support. While she has gone
to school rather than seeking employment, she made steady
progress subsequent to her 18th birthday. The Board
concludes from the evidence that, as of her 18th birthday,
she was not permanently incapable of self-support within the
meaning of applicable regulations. 38 U.S.C.A. § 101(4);
38 C.F.R. §§ 3.57, 3.356. The evidence is not so evenly
balanced that there is doubt as to any material issue.
38 U.S.C.A. § 5107.
ORDER
Entitlement to recognition of the veteran's daughter,
[redacted] , as a "child" based upon having permanent incapacity
for self-support prior to age 18, is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
CHARLES E. HOGEBOOM (MEMBER TEMPORARILY ABSENT)
WAYNE M. BRAEUER
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
(CONTINUED ON NEXT PAGE)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.